In honor of opening day in Major League Baseball two weeks ago, I wanted to dedicate my post to the liability of stadiums for batted balls.

Across the land, courts deny recovery to baseball spectators hit by batted balls. Like most torts professors, I teach this rule in my 1L class. My casebook covers the rule in connection with the Jones v. Three Rivers Management Corp. case (which, interestingly enough, allowed recovery where a fan was injured due to the unusual architectural features of a brand-new stadium).

Why should this well established rule be viewed as the correct one? Who really loses if baseball operators were forced to pay judgments to injured fans? Consider what would happen if the rule were abandoned. Baseball operators would have two choices.

First, they could add more netting, Plexiglas barriers, and the like, to protect fans, or perhaps make baseballs more spongy and less likely to cause injury. This would be a tragic result, no doubt, because fans like to watch the game as it has been played since the days of Abner Doubleday. The chance to catch a batted ball is part of the “fun” associated with attending a baseball game, and can even be profitable for fans if the ball has historic value. Similarly, more prominent and regular reminders of the dangers of flying objects, designed to alert fans, would be viewed by most fans as annoying.

So instead, stadium operators would likely choose not to screen more seating or spongify baseballs. What they would do is purchase broader liability insurance coverage, and pass the cost of such coverage on to fans in the form of higher ticket prices. But isn’t that in fact the just result? If fans want the game to be played the way it always has been, with its attendant risk of injury, should they not also be the ones forced to bear the cost of injury instead of visiting an “overwhelming misfortune” on a single injured spectator? This loss-spreading rationale was the basis for the move to strict liability in products injury cases spurred by Justice Traynor’s concurring opinion in Escola v. Coca Cola Bottling Plant of Fresno California, and I can identify no reason why the principle should not also be applied in the stands.

Yet baseball is so much a part of popular consciousness that courts prefer to have an injured spectator bear the risk of loss. To be sure, baseball fans struck by balls while talking on their cell phones, like this Yankees fan unceremoniously caught on video, should, like drivers who decline to make their cars no-phone-zones, be assigned a fairly large share of the fault under comparative negligence. But it seems to me that juries should be given the chance to weigh the impact of a fan’s inattention against the dangers to which stadium operates expose their audiences.